2020 P Cr. L J 442
[Balochistan]
Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ
FAZAL KHAN and 2 others ---Petitioners
Versus
ADDITIONAL SESSIONS JUDGE/MODEL CRIMINAL TRIAL COURT, BARKHAN
AT RAKHNI and another ---Respondents
Criminal Miscellaneous Quashment No. 257 of 2019, decided on 22nd October, 2019.
(a) Penal Code (XLV of 1860) ---
----Ss. 193, 194 & 195--- Criminal Procedure Code (V of 1898), Ss. 195 & 561- A---Offences
against public justice, giving or fabricating false evidence ---Quashing of proceedings ---
Petitioners assailed order of Trial Court whereby while acquitting the accused persons, directed the Magistrate under S. 195, Cr.P.C. to initiate proceedings against the prosecution witnesses for giving false evidence and commissi on of offence under Ss. 193, 194 & 195,
P.P.C. ---Principle falsus in uno, falsus in omnibus had gradually encouraged and emboldened
witnesses appearing in trials of criminal cases to indulge in falsehood and lies and making it more and more difficult for t he courts to discover truth and dispense justice ---Said principle
was not to be applied to criminal cases in Pakistan as it was formed as a result of taking into account extraneous and practical considerations, rather than legal and jurisprudential, and the said view was not in accord with the Islamic provisions on the subject besides militating against the criminal law, according to which deposing falsely in a court and commission of perjury entailed serious penal consequences ---Trial Court had rightly dir ected for initiating
proceedings under S. 195, Cr.P.C.--- Petition for quashing the proceedings before Magistrate
was dismissed.
PLD 2019 SC 527 fol.
(b) Criminal Procedure Code (V of 1898) ---
----S. 561 -A---Inherent powers of High Court ---Alternate remed y---Scope ---Provisions of S.
561- A, Cr.P.C. cannot be used to override the express provision of law ---Inherent
jurisdiction of the court under S. 561- A, Cr.P.C. is additional ---When other remedy is
available with the aggrieved person, the question to invoke the inherent power of High Court under S. 561- A, Cr.P.C. does not arise.
Khalid Iftikhar v. The State PLD 1997 SC 275 ref.
(c) Criminal Procedure Code (V of 1898) ---
----S. 561 -A--- Inherent powers of High Court --- Quashing of proceedings --- Abuse of
process of court ---Scope ---Powers under S. 561 -A, Cr.P.C. can be exercised to prevent abuse
of the process of any court or to secure the ends of justice ---Such powers cannot be exercised
mechanically or in every case where there is an allegation of false im plication or of the
evidence being false ---Exercise of such powers cannot further the ends of justice, if an
exercise is undertaken at pre -trial stage to determine whether the prosecution evidence, likely
to come on record, is true or false.
Khalid Iftik har v. The State PLD 1997 SC 275 ref.
Asif Ali Zardari's case 1994 SCMR 798 rel.
(d) Criminal Procedure Code (V of 1898) ---
----S. 561- A---Inherent powers of High Court ---Quashing of proceedings ---Scope ---
Quashing of proceedings at an early stage gives an impression of stifling of criminal
prosecutions, by exercise of an extraordinary power which is given for the dispensation of complete justice, in the forms provided by law.
Khalid Iftikhar v. The State PLD 1997 SC 275 ref.
Raja Haq Nawaz v. Muhammad Afzal and others PLD 1967 SC 354 rel.
(e) Criminal Procedure Code (V of 1898) ---
----S. 561 -A---Inherent powers of High Court ---Quashing of criminal proceedings ---Scope ---
Determination of the guilt or innocence of an accused depends on totality of facts and circumstances revealed during the trial and when such a stage had not reached, application of quashing of proceedings was li able to be rejected.
Khalid Iftikhar v. The State PLD 1997 SC 275 ref.
Gian Chand v. State 1968 SCMR 380 rel.
Shoaib Ahmed Mengal, Advocate (absent) for Petitioners.
Date of hearing: 26th June, 2014.
ORDER
ABDUL HAMEED BALOCH, J. ---The following prayer has been made in this
petition:
"It is accordingly respectfully prayed that vide judgment dated 02.04.2019, passed by (respondent No.1) Addition Sessions Judge/Model Criminal Trial Court (MCTC) Barkhan at Rakhni may be quashed and after quashing any subsequent action on the based whereof as directed to Judicial Magistrate Barkhan may kindly be suspended, in
the interest of justice, equity and fair play."
2. Brief facts of the prosecution case are that on 12.05.2017 the complainant Fazul Khan
lodged the referred FIR No.73/2017 with Levies Thana Nahar Kot under sections 302, 147,
148, 149, P.P.C. to the effect that on the stated date at about 9:30 a.m., his son was working on his lands situated at Dargarri, meanwhile appellant along with absconding accused persons armed with Kalashnikovs cam e there and asked him for providing a way in his land
for supply of water but his son refused, as such they fired upon him, resultantly he received bullet injuries and succumbed to injuries at the spot. Hence the instant case was registered.
3. After submi ssion of challan and full dressed trial the Additional Sessions
Judge/Model Criminal Trial Court (MCTC) Barkhan at Rakhni (trial court) vide judgment dated 02.02.2019 (the impugned judgment), acquitted the accused persons facing trial of the charge with fu rther direction to the Judicial Magistrate Barkhan to initiate the proceedings
under section 195, Cr.P.C. against the prosecution witness namely Fazal Khan son of Ahmed Khan, Mian Khan son of Hazar Khan and Jalal Khan son of Jamal Khan for giving false evidence and commission of offence under sections 193, 194 and 195, P.P.C. Hence this
petition.
It is to be noted that despite service of notice the learned counsel for petitioner
remained absent, as such we are left with no other option but to decide the pe tition after
going through the record.
4. The record reveals that the learned trial court acquitted the arrested accused namely
Naik Muhammad of the charge vide impugned judgment, whereafter the petitioner No.1 filed Criminal Acquittal Appeal No.136 of 2019 before this court, which was dismissed in liminie
by upholding the impugned judgment passed by the trial court.
5. The petitioner has invoked the inherent jurisdiction of this court. The provision of
section 561- A, Cr.P.C. cannot be used to override the express provision of law. The inherent
jurisdiction of the court under section 561- A, Cr.P.C. is additional. When other remedy is
available with the aggrieved person the question to invoke the inherent power of this court under section 561- A, Cr.P.C. would not arise.
6. The Hon'ble Supreme Court, while dealing with the proposition in case of Asif Ali
Zardari (1994 SCMR 798) observed that powers
under section 561- A, Cr.P.C. can be exercised to prevent abuse of the
process of any court or to secure the ends of justice. Such powers cannot be exercised
mechanically or in every case where there is allegation of false implication or of the evidence being false. Exercise of such powers cannot further the ends of justice, if an exercise is undertaken at pretrial stage to determine whether the prosecution evidence likely to come on record is true or false. In the case of Raja Haq Nawaz v. Muhammad Afzal and others (PLD 1967 SC 354), it was held that Quashment of proceedings at an early stage gives an unfortunate impre ssion of stifling of criminal prosecutions, by exercise of an extraordinary
power which is given for the dispensation of complete justice, in the forms provided by law.
Similar view was taken in the case of Gian Chand v. State (1968 SCMR 380) where it was observed that determination of the guilt or innocence of an accused, depends on totality of facts and circumstances revealed during the trial, and when such a stage had not been reached, the application for Quashment of the proceedings in the trial court, was rightly
rejected by the High Court. Khalid Iftikhar v The State PLD 1997 SC 275 may be referred to
in the above context.
7. As far as the directions of the trial court in the impugned judgment for initiation of
proceeding under section 195, Cr.P.C. against the petitioners is concerned, the Hon'ble apex
Court in a judgment reported in a case reported in (PLD 2019 SC 527) declared the rule
falsus in uno falsus in omnibus applicable in the country with the following effect:
"3. While attending to this matter we have felt that the deeper issue involved in the
matter relates to the fact that the rule falsus in uno falsus in omnibus had in the past been held by the superior Courts of this country to be inapplicable to criminal cases in Pakistan whi ch had gradually encouraged and emboldened witnesses appearing in
trials of criminal cases to indulge in falsehood and lies making it more and more difficult for the Courts to discover truth and dispense justice. We have undertaken an
exhaustive exercise s o as to trace the history of the said rule and to understand how
the jurisprudence around it has developed in Pakistan while also adverting to the
relevant Islamic and legal provisions dealing with the subject. After a careful consideration of the history of the rule, the relevant Islamic Provisions and the law of the land and after analyzing the precedent case -law available on the subject we have
come to the conclusion that the view that the rule is not to be applied to criminal cases in Pakistan was formed as a result of taking into account extraneous and
practical considerations, rather than legal and jurisprudential, and the said view is not in accord with the Islamic provisions on the subjects besides militating against the criminal law of this country according to which depositing falsely in a Court and commission of perjury entail serious penal consequences."
8. While following the judgment supra, we are of the considered opinion that the trial
court has rightly directed for initiating proceedings under section 195, Cr.P.C.
Thus, in view of above, the Criminal Miscellaneous Quashment Petition is dismissed
in liminie.
SA/139/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.